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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SATYEN VAIDYA, J.
Narender Kumar – Petitioner
Versus
The Himachal Pradesh Tourism Development Corporation and Another – Respondents
C.W.P. No. 1112 of 2021
Decided On : 05-12-2022
Industrial disputes - Employment and Service matter - Engaged as beldar on daily wage basis - Petitioner was engaged as beldar on daily wage basis by respondent No. 1 and worked as such till - With effect from designation of petitioner was changed to Junior Draughtsman - He continued to work in such capacity till , on which date services of petitioner were terminated - Respondent assailed aforesaid award before Court by way of CWP No. - A co-ordinate Bench of this Court upheld award passed by learned Tribunal while dismissing writ petition filed by respondent - Respondent further assailed judgment passed by learned Single Judge of this Court before a Division Bench by way of LPA No. 10 of 2019, which was also dismissed - Respondent No. 1 ordered engagement of petitioner as Junior Draughtsman on daily wage basis with immediate effect - It was specifically noted that seniority of petitioner, in terms of judgment passed by a Division Bench of Court, would be decided separately - Respondent No. 1 issued an office order whereby services of petitioner were ordered to be regularized w.e.f. on notional basis (without financial benefits) and on actual basis (with financial benefits) from date of his joining - Consequent to aforesaid orders, pay of petitioner was fixed vide office order dated - Contention of learned counsel for respondents that petitioner after accepting his re-engagement without reservation is not entitled to raise issue subsequently deserves to be rejected - Petitioner had no option but to join - Merely because he had not reserved his right while joining, does not mean that he had given up his rights available to him in accordance with law. Para 14
Finding of Court :
Merely because he had not reserved his right while joining, does not mean that he had given up his rights available to him in accordance with law - In view of the fact that petitioner is held to be entitled to actual financial benefits from the date of award and all other service benefits from petitioner has also become entitled to paid leave in accordance with service rules applicable in respondent No. 1-Corporation - In light of above discussion, petition is allowed - Office orders dated (Annexure P-5), (Annexure P-6) and order dated (Annexure P-9) are quashed and set-aside - Petitioner is held entitled to all service benefits on actual basis from and on monetary benefits on actual basis w.e.f. date of passing of award - Respondents are directed to re-fix salary of petitioner accordingly and pay entire arrears to petitioner within six weeks from date of passing of judgment - Respondents are further directed to credit leave of 313 days availed by petitioner to leave of kind due to him.
Result : Petition stands disposed of
JUDGMENT :
SATYEN VAIDYA, J.
1. By way of instant petition, petitioner has prayed for following substantive reliefs:
(i) That the impugned order dated 09.03.2020 (Annexure P-8), order dated 07.08.2019 (Annexure P-5) and order dated 28.09.2019 (Annexure P-6) may kindly be quashed and set-aside.
(ii) That writ in the nature of mandamus may kindly be issued directing the respondents to grant wages/salary to the petitioner w.e.f. 31.11.2009 with all consequential benefits in consequence to the award passed by the learned Labour Court on 30.11.2009 and further respondents may be directed to pass the fixation order w.e.f. 20.01.2009 with all consequential benefits including the arrear of salary with interest throughout.
2. The petitioner was engaged as beldar on daily wage basis by respondent No. 1 on 14.05.1997 and worked as such till 30.04.1998. With effect from 01.05.1998 the designation of the petitioner was changed to Junior Draughtsman. He continued to work in such capacity till 08.03.2000, on which date the services of the petitioner were terminated.
3. Petitioner raised an industrial dispute. The appropriate Government referred the dispute for adjudication of the Industrial Tribunal-cum-Labour Court, Shimla (for short “the Tribunal”). Learned Labour Court decided the reference in favour of the petitioner and passed the award dated 30.11.2009 in Reference No. 121 of 2004 in the following terms:
“As a sequel to my above discussion and findings on issue Nos. 1 to 3, the claim of the petitioner succeeds and is hereby allowed and the petitioner is ordered to be reinstated in service forthwith with seniority and continuity from the date of his illegal termination. However, the petitioner is not entitled to back wages as he has not placed any material on record to substantiate that he was not gainfully employed after his termination. Let a copy of this award be sent to the appropriate government for publication in official gazette. File, after completion, be consigned to records.”
4. The upshot of the award clearly was that petitioner was to be reinstated and his reinstatement was to entail seniority and continuity in service, only back wages were denied to the petitioner.
5. The respondent assailed the aforesaid award before this Court by way of CWP No. 1627 of 2010. A co-ordinate Bench of this Court upheld the award passed by learned Tribunal while dismissing the writ petition filed by the respondent. The respondent further assailed the judgment passed by learned Single Judge of this Court before a Division Bench by way of LPA No. 193 of 2016, which was also dismissed on 11.03.2019.
6. On 16.05.2019, respondent No. 1 ordered the engagement of petitioner as Junior Draughtsman on daily wage basis with immediate effect. It was specifically noted that seniority of petitioner, in terms of the judgment passed by a Division Bench of this Court, would be decided separately. On 07.08.2019, respondent No. 1 issued an office order whereby the services of the petitioner were ordered to be regularized w.e.f. 17.01.2009 on notional basis (without financial benefits) and on actual basis (with financial benefits) from the date of his joining. Consequent to aforesaid orders, the pay of the petitioner was fixed vide office order dated 28.09.2019 (Annexure P-6).
7. The grievance raised by the petitioner by way of instant petition is that the order dated 07.08.20019 (Annexure P-5) whereby his services have been regularized retrospectively on notional basis w.e.f.17.01.2009, is wrong, illegal and arbitrary. Vide award dated 30.11.2009, the petitioner had become entitled to continue in job from the date of his illegal retrenchment and such continuation was to have benefits of continuity and seniority in service as if the petitioner had continuously worked. The contention of petitioner is that he cannot be penalized for no fault of his. Had the award passed by learned Tribunal been implemented by the respondent immediately, petitioner would have earned his salary
SupremeToday
Point of Law : Merely because litigation, that too, at instance of respondents continued for considerable long period cannot be held to be a factor to disentitle petitioner from all actual benefits, ....
Point of Law : Merely because litigation, that too, at instance of respondents continued for considerable long period cannot be held to be a factor to disentitle petitioner from all actual benefits, ....
The main legal point established in the judgment is the entitlement of an employee to claim wages for the period between dismissal and reinstatement, as per the provisions of the Industrial Disputes ....
Grant of a relief of reinstatement, it is trite, is not automatic. Grant of back wages is also not automatic. The Industrial Courts while exercising their power under Section 11A of the Industrial Di....
Dismissal from service - When an order of termination by way of punishment i.e. dismissal or removal is set aside being in violation of principle of natural justice, such an order of punishment rende....
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